AJ DiCintio

Hostile Alien Case Exposes Danger of Activist Judiciary
March 16, 2009
 

Of the many troubling realities regarding judicial activism, one is that it is always a challenge to get the mass of citizens to enlist in a committed fight against it — despite the self-evident truth of the ideology’s dictatorial nature.

To make matters worse, the difficulty of that task rises exponentially during booms and hard times.

But keenly aware of the importance of keeping up the battle against the abomination, Andrew C. McCarthy (National Review) fired off an insightful, resounding shot when he recently warned that “Federal courts have just surrendered in the war against radical Islam.”

Tough, provocative language? Yes.

However, if we summon the courage to relive the sights, sounds, and feelings that enveloped us on 9/11 as well as consider the abhorrent madness evident everywhere Islamist fascists wield power, we will realize that McCarthy deserves our thoughtful attention.

Giving that attention, we find he argues that in its decision regarding al Odah v. United States, the U.S. Court of Appeals for the D.C. Circuit “dealt a crushing blow to national defense.”

First, however, he provides the basis for Odah with the observation that in last summer’s 5-4 Boumediene decision, the Supreme Court’s liberal activists ruled that hostile aliens (“enemy combatants”) are entitled to constitutional protections.

Just as important, argues McCarthy, Boumediene enunciated two other principles:

1) That the Court — not Congress acting in concert with the executive — is the final arbiter regarding rights due hostile aliens.

2) That the Court recognizes no area in which it bears a constitutional duty to defer to the elected branches of government.

(Indeed, Justice Anthony Kennedy took pains to announce — in what McCarthy terms a “breathtaking decree” — that the “Executive’s powers as Commander in Chief” are “vindicated” when they are “confirmed by the Judicial Branch.”)

Having illuminated the import of Boumediene, McCarthy makes the following observations about the Odah ruling which has to do with how much classified information a hostile alien is entitled to receive with respect to why he is being held.

1) Agreeing with McCarthy that it injures “both the public and our troops in harm’s way to give our enemies unnecessary insights about what we know and how we know it,” the Justice Department argued that in addition to being provided any exculpatory evidence, a person alleged to be a hostile alien is entitled only to basic information regarding why he is being held.

2) Justice also contended that with respect to such detainees, government decides what information is exculpatory. (As a point of reference, McCarthy reminds us that U.S. citizens have “no right to force the government to present any exculpatory evidence to a grand jury.”)

3) The D.C. Circuit, however, disregarded law that McCarthy calls “good enough for American citizens accused of crime” and ruled that regarding exculpatory evidence, “it is the court’s responsibility to make the materiality determination itself.”

4) Moreover and astonishingly, the activist judges were expansive in their decision, ruling that what is “actually inculpatory” (emphasis from the decision) might be useful to the detainee.

(Yes, you read that last, stunning point accurately. The judges held that when they deem it appropriate, they may order government officials to provide hostile aliens with information regarding (in McCarthy’s words) “what we know about their training programs, who attended them, and how we might have come about that knowledge.”)

The shocking realities of the case made clear, McCarthy delivers this profound warning regarding judges whose overriding principle appears to be “anything to help the enemy.”

Henceforth, the price of detaining an enemy operative will be the coerced disclosure of intelligence that may be more valuable to the enemy than is the combatant himself. Factor in the enormous resource drain the litigation requires, and holding prisoners becomes a net loss for the war effort. And the war effort becomes a waste of time unless you only kill rather than capture — which is al-Qaeda’s way of doing things, but not ours.

The account of McCarthy’s compelling analysis of a “war powers” case could end here. However, because this author proudly associates himself with every other American who opposes the scourge of judicial activism, it cannot end without mentioning that in the following passage from his piece, McCarthy beautifully expresses the fundamentally dictatorial nature of activist judges:

[Activist Judges] no longer see themselves as part of the U.S. government. . .They are spectator turned critic turned detached manager. Their self-perception is that of a shadow outside and above the U.S. government, serving not a Constitution of limited powers but ‘the law’ — an ever-evolving, all-encompassing corpus of cosmic justice.

How excellently does that passage do its job? Well, compare the idea of its opening sentence with that of the last eight words of the following quote, representing one of scores in which Jefferson condemned activist judges, all of whom, he believed, deserve to be removed from office:

We have. . .[required] a vote of two-thirds in one of the Houses for removing a judge; a vote so impossible where any defense is made before men of ordinary prejudices and passions, that our judges are effectually independent of the nation.

The comparison made, it is impossible to deny that McCarthy stands in the company of the great Founder who, never wavering in his belief that humanity’s “unalienable Rights” are best protected when power is held close to the people, may rightly be called the father of the fight against judicial oligarchy.